Treatment in best interests (Form 4)
Form for patients aged 16 years and over who may lack
the capacity to consent to examination or treatment
This form should be completed by the health professional responsible for the proposed
procedure or course of treatment. To be retained in patient’s notes.
Patient details (or pre-printed label)
Patient’s surname/family name ..………………………………… Patient’s first names .….….…………….….…
Date of birth ………………………………………………………..
Male
Female
NHS number (or other identifier)……………..………………......
Special requirements (e.g. other language/communication method): ………..…………..……………..…………………..
Decision maker’s name1: .…………………………………………………..………….……………………..…..
Professional registration number (e.g. GMC, NMC, GDC, HCPC, etc) ………...……………….………………..
A. Details of decision that needs to be made (i.e. procedure or course of treatment
proposed)
(NB: See Section 7 of attached Guidance Notes for details of situations where court approval must first be sought)
B. Assessment of patient’s capacity (in accordance with the Mental Capacity
Act 2005) (see Section 1 of the Guidance Notes)
Tick YES or NO as applicable and enter relevant information into each box.
B1. Is there reason to doubt that the person has capacity to make the above decision?
YES - record doubts and go to box B2:
NO – presume capacity and end assessment (go to box B9).
B2. Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain?
YES – record the nature of the impairment or disturbance and go to box B3:
NO – presume capacity and end assessment (go to box B9).
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Where the decision involves the provision of medical treatment, the doctor or other member of health care staff
responsible for carrying out the particular treatment or procedure is the decision-maker.
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B3. Would the person be able to make the decision with practical help and support?
YES – record support given and presume capacity (go to box B9):
NO – go to box B4.
B4. Would the person be able to make the decision at a different time, place or under different
circumstances?
YES – record what would help the patient and reassess capacity at appropriate time and sign Section
F:
NO – go to box B5.
If the answer is ‘No’ to ANY of questions B5-B8, then this person lacks capacity to make this
decision.
B5. Does the person understand the nature and consequences of accepting or refusing the proposed
treatment, or of not making the decision?
YES – go to box B6.
NO – explain and go to box B9:
B6. Is the person able to retain the information long enough to make the decision?
YES – go to box B7.
NO – explain and go to box B9:
B7. Is the person able to use or weigh the information as part of making the decision?
YES – go to box B8.
NO – explain and go to box B9:
B8. Is the person able to communicate their decision in some way?
YES – If you have answered ‘Yes’ to questions B5 - B8 then this person has capacity to make this
decision – go to box B9. Please obtain the patient’s consent using the appropriate consent form.
NO – explain and go to box B9:
B9. Outcome of assessment
I have assessed this patient’s capacity to make the decision in question and it is my belief, on the
balance of probabilities and given the evidence above, that this patient:
has the mental capacity to make the decision about the proposed procedure or course of treatment
(sign Section F) (obtain the patient’s consent using the appropriate consent form).
lacks the mental capacity to make the decision about the proposed procedure or course of treatment
(move on to Section C).
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C. Advance Decision, Personal Welfare Lasting Power of Attorney, Court
Appointed Deputy - Complete BOTH sections (C1 – C2)
C1. Advance Decision to refuse treatment (see Section 2 of the Guidance Notes)
There is a valid and applicable advance decision which refuses the procedure or course of treatment
identified in Section A and/or which refuses a procedure which could arise in the course of the
proposed procedure or course of treatment (The patient’s decision to refuse the treatment must be
respected) (file a copy of the advance decision in the medical record, if it is in writing, or make detailed
notes if it was a verbal advance decision).
I am not aware of a valid and applicable advance decision which refuses the procedure or course of
treatment identified in Section A, and/or which refuses a procedure which could arise in the course of
the proposed procedure or course of treatment.
C2. Personal Welfare Lasting Power of Attorney / Court Appointed Deputy
(see Sections 3 & 4 of the Guidance Notes)
Where the patient has authorised an Attorney to make decisions about the procedure in question under
a Personal Welfare Lasting Power of Attorney (LPA) or a Court Appointed Deputy has been authorised
to make decisions about the procedure in question, the Attorney or Deputy will have the final
responsibility for determining whether a procedure is in the patient’s best interests.
Tick one box
I have not been made aware of the existence of a Personal Welfare LPA / Court Appointed Deputy with
the necessary authority to make this decision.
I have seen and read the Registered Personal Welfare LPA document and I am satisfied that the
Attorney has the authority to take this decision about the proposed treatment (file a copy in notes).
I have seen and read the Court order appointing the Deputy and I am satisfied that the Deputy has the
authority to take this decision about the proposed treatment (file a copy in notes).
Llofnod yr Atwrnai / Dirprwy
Signature of Attorney / Deputy
Rwyf wedi cael fy awdurdodi i wneud penderfyniadau
am y driniaeth dan sylw o dan Atwrneiaeth Arhosol Lles Personol* / fel Dirprwy a Benodwyd gan y Llys*
(*dilëwch fel y bo'n briodol). Rwyf wedi ystyried yr
amgylchiadau perthnasol yng nghyswllt y
penderfyniad dan sylw ac, yn fy marn i, mae'r
driniaeth a ddisgrifiwyd yn Adran A (ticiwch un blwch):
I have been authorised to make decisions about
the procedure in question under a Personal
Welfare Lasting Power of Attorney* / as a Court
Appointed Deputy* (*delete as appropriate). I have
considered the relevant circumstances relating to
the decision in question and believe the procedure
described in Section A (tick one box):
er budd pennaf y claf ac rwy'n cydsynio i'r driniaeth.
is in the patient’s best interests and I consent to it
being undertaken.
ddim er budd pennaf y claf ac nid wyf yn cydsynio
i'r driniaeth.
is not in the patient’s best interests and I do not
consent to it.
Unrhyw sylwadau eraill
Any other comments
(gan gynnwys yr amgylchiadau a ystyriwyd wrth asesu beth
sydd er budd pennaf y claf)
(including the circumstances considered in working out
what is in the patient’s best interests)
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
Perthynas â'r claf / Relationship to patient: ...……………..………………………………………………………….
Cyfeiriad (os yw'n wahanol i'r claf) / Address (if not the same as patient): ..……………………………………...
……………………………………………………………………………………………………………………………..
Llofnod yr Atwrnai/Dirprwy / Signature of Attorney/Deputy: ..…..………………………………………..…………
Enw (LLYTHRENNAU BRAS) / Name (PRINT): ..….………………………………………………………………..
Dyddiad / Date: …………………………………………………………………………………………………………..
If there is a valid and applicable advance decision refusing the procedure or course of treatment OR
a decision of an attorney or deputy, you do not need to complete the rest of this form. Please sign
Section F.
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D. Independent Mental Capacity Advocate (IMCA) (see Section 5 of the Guidance Notes)
For decisions about serious medical treatment4, where there is no one appropriate to consult (see section
E5) other than paid staff, an Independent Mental Capacity Advocate (IMCA) MUST be instructed.
Has an IMCA been instructed?
Yes
Not applicable (go to Section E below)
If Yes, the report of the IMCA must be considered in coming to a decision about what is in the patient’s best
interests (see Section E). A copy of the report should be filed in the medical record.
How have you taken into account the IMCA’s report in deciding what is in the person’s best interests?:
...........................................................................................................................................................................
......................................................…………………………………………………………………………………..…
E. Working out what is in the patient’s best interests
(see Section 6 of the Guidance Notes)
The law requires you to do everything you reasonably can to work out what the patient’s best interests are.
All the boxes below must be completed.
E1. Is the person likely to have capacity for this decision at some time in the future?
YES – record this consideration:
NO
If ‘Yes’, is it possible to delay the decision?
YES – do not proceed. Wait until the person regains capacity to consent or refuse.
NO – Capacity unlikely to change or decision cannot be delayed. Record your reasons:
E2. Are there any alternatives to this decision that are less restrictive?
YES – record considered alternatives and why they are not the best option:
NO – There are no satisfactory less restrictive alternatives.
E3. Have you supported the person as much as possible to be involved with this decision (although they
don’t have the capacity to make the decision)?
YES – record support given:
NOT POSSIBLE – explain reasons:
E4. Have you considered:
(a) any verbal or written wishes and feelings that the person has previously expressed or is currently
expressing,
(b) the beliefs and values that would be likely to influence the person’s decision if he had capacity, and
(c) any other factors that the person would have considered if they were able to do so?
YES – record considerations:
NO – There are none available.
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E5. The following people, if practical and appropriate, must be consulted for their views about the person’s
best interests and any information about the person’s wishes, feelings, beliefs and values and other
relevant factors, although they do not have the authority to make the decision on behalf of the patient.
Please tick relevant boxes to identify who of the following has been consulted:
Anyone the person has previously named as someone they want to be consulted.
Anyone involved in caring for the person (e.g. referrer, paid or unpaid carers, spouse, partner, civil
partner, parents, other family members).
Anyone interested in the person’s welfare (e.g. family members, friends, an advocate already working
with the person).
An attorney appointed by the person under an LPA (but without authority to make this decision).
A deputy appointed by the Court of Protection (but who does not have authority to make this decision).
Give names and relationship of people consulted and details of discussions held:
If no-one has been consulted, explain why not (if the decision is about serious medical treatment4, you must
instruct an IMCA if there is no-one [other than paid professionals/carers] available to consult – go back to Section D):
E6. Were there any disagreements encountered during the assessment of best interests?
YES – record what these are, how they are being taken into account and what steps you are taking to
resolve them (NB: If the decision is disputed you must seek legal advice). Go to box E7.
NO – go to box E7.
E7. Was it necessary to involve the Court of Protection?
YES – record decision made by the Court (sign Section F):
NO – go to box E8.
E8. Best interests decision
You, as the decision-maker, are responsible for the final decision. Record the decision that has been
made in the person’s best interests in the space below.
I confirm that, in my judgement as the decision maker, .……………………..………………………………
…………………………………………………………………...….. (insert procedure / course of treatment)
is in the best interests of this patient because ………………………………………………………………..
………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………
………………………...……… (insert summary of reasons for coming to this decision). Sign Section F.
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F.
Signature of health professional2 completing this form
I confirm that I have (tick all relevant boxes):
undertaken an assessment of capacity
considered whether or not there is an advance decision / someone with legal authority to make this
decision
consulted with relevant people regarding what is in the patient’s best interests
worked out what course of action is in the patient’s best interests and made a decision.
Signature: ..….………………………………………………….. Date: ...…..…………..……………..……….………
Name (PRINT): ………………………...……….……………… Job title: ...………………..…………………………
Professional registration number (e.g. GMC, NMC, GDC, HCPC, etc) ………...……………….………………….
G. Related documents copied and filed in medical record
Where applicable, the following documents have been copied and filed in the patient’s medical record:
Valid and applicable advance decision
Personal Welfare Lasting Power of Attorney documentation
Court order appointing the Deputy
IMCA report
Court order/decision
Guidance Notes for health professionals (to be read in conjunction with Consent Policy)
This form should only be used where it would be usual to seek written consent, but an adult patient (16 or
over) lacks capacity to give or withhold consent to treatment. If a patient of 16 years and over has capacity to
accept or refuse treatment, you should use Consent Form 1 and respect any refusal. In respect of young
persons aged 16 or 17 who have capacity but are refusing treatment see the Welsh Government’s Reference
Guide for Consent to examination or treatment for further guidance. Where treatment is very urgent (for
example if the patient is critically ill), it may not be feasible to fill in a form at the time, but you should
document your clinical decisions appropriately afterwards. If the adult now lacks capacity, but has made a
valid advance decision to refuse treatment that is applicable to the proposed treatment, then you must abide
by that refusal. For further information on the law on consent, see the Welsh Government’s Reference guide
to consent for examination or treatment (www.wales.nhs.uk/consent).
Health professionals should only take consent in specific clinical situations where they have undertaken
formal training including on consent and mental capacity and have been competency assessed. They should
familiarise themselves with any appropriate professional guidance, their organisation’s consent policy and
Welsh Government’s guidance on consent.
1) MENTAL CAPACITY
When treatment can be given to a patient who lacks the capacity to consent
All decisions made on behalf of a patient who lacks capacity must be made in accordance with the Mental
Capacity Act 2005 and its accompanying Code of Practice3. Treatment can be given to a patient who is
unable to consent, only if:
 the patient lacks the capacity to give or withhold consent to this procedure AND
 the procedure is in the patient’s best interests.
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3
This form only requires one signature – that of the decision maker (see footnote 1)
Mental Capacity Act 2005 Code of Practice - www.publicguardian.gov.uk/mca/code-of-practice.htm
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Capacity (MCA Code of Practice, Chapter 4)
A person lacks capacity if they have an impairment or disturbance (for example, a disability, condition or
trauma, or the effect of drugs or alcohol) that affects the way their mind or brain works which means that they
are unable to make a specific decision at the time it needs to be made. It does not matter if the impairment
or disturbance is permanent or temporary. A person is unable to make a decision if they cannot do one or
more of the following things:
 Understand the information given to them that is relevant to the decision.
 Retain that information long enough to be able to make the decision.
 Use or weigh up the information as part of the decision-making process.
 Communicate their decision - this could be by talking or using sign language and includes simple muscle
movements such as blinking an eye or squeezing a hand.
You must take all steps reasonable in the circumstances to assist the patient in taking their own decisions.
This may involve explaining what is involved in very simple language, using pictures and communication and
decision-aids as appropriate. People close to the patient (spouse/partner, family, friends and carers) may
often be able to help, as may specialist colleagues such as speech and language therapists or learning
disability teams, and independent advocates (as distinct from an IMCA as set out below) or supporters.
Sometimes it may be useful to seek advice from a colleague: however, it is your responsibility, as the
decision maker1, to reach a final decision about the patient’s mental capacity.
Capacity is ‘decision-specific’: a patient may lack capacity to take a particular complex decision, but be able
to take other more straight-forward decisions or parts of decisions. Capacity can also fluctuate over time and
you should consider whether the person is likely to regain capacity and if so whether the decision can wait
until they regain capacity.
2) ADVANCE DECISIONS (MCA Code of Practice, Chapter 9)
An advance decision enables a person aged 18 years and over, while still capable, to refuse specified
medical treatment at a time in the future when they lack the capacity to consent to or to refuse that treatment.
The advance decision must be valid and applicable – if it is, it has the same effect as a decision that is made
by a person with capacity. If the advance decision concerns the refusal of life-sustaining treatment, it must be
in writing, signed and witnessed and state clearly that the decision applies even if the patient’s life is at risk.
3) PERSONAL WELFARE LASTING POWER OF ATTORNEY
(sometimes called a ‘Health and Welfare’ LPA) (MCA Code of Practice, Chapter 7)
A person of 18 years and over, who has capacity, can appoint an attorney to look after their health and
welfare decisions, if they lack the capacity to make such decisions in the future. Under a Personal Welfare
Lasting Power of Attorney (LPA) the attorney can make decisions that are as valid as those made by the
person themselves. You must see a copy of the registered LPA document before allowing an attorney to
make decisions. It will be stamped on every page with the perforated words ‘Validated – OPG’. If in doubt
about its validity, seek advice. The LPA may specify limits to the attorney’s authority and the LPA must
specify whether or not the attorney has the authority to make decisions about life-sustaining treatment. The
attorney can only, therefore, make decisions as authorised in the LPA and must make decisions in the
person’s best interests. An attorney cannot consent to treatment if the patient has made a valid and
applicable advance decision to refuse a specific treatment (see chapter 9 of the MCA Code of Practice). But
if the patient made a Lasting Power of Attorney after the advance decision, and gave the attorney the right to
consent to or refuse the treatment, the attorney can choose not to follow the advance decision. An attorney
cannot consent to or refuse most treatment for a mental disorder for a patient detained under the Mental
Health Act 1983. An attorney cannot authorise the giving or refusing of consent to the carrying out or
continuation of life-sustaining treatment, unless the LPA document contains express provision to that effect.
4) COURT APPOINTED DEPUTY (MCA Code of Practice, Chapter 8)
The Court of Protection may appoint a person (known as a Deputy) to make decisions for people who lack
capacity to take particular decisions for themselves, including healthcare. Deputies for personal welfare
decisions will only be required in the most difficult cases where important and necessary actions cannot be
carried out without the court’s authority or where there is no other way of settling the matter in the best
interests of the person who lacks capacity. If a deputy has been appointed to make treatment decisions on
behalf of a person who lacks capacity, then it is the deputy rather than the health professional who makes the
treatment decision and the deputy must make decisions in the patient’s best interests. Deputies cannot make
decisions to refuse the provision or continuation of life sustaining treatment. These must be referred to the
Court of Protection.
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5) INDEPENDENT MENTAL CAPACITY ADVOCATE (IMCA) (MCA Code of Practice, Chapter 10)
The Mental Capacity Act introduced a duty on the NHS to instruct an independent mental capacity advocate
(IMCA) in serious medical treatment decisions4 when a person who lacks capacity to make a decision has no
one who can speak for them, other than paid staff. IMCAs are NOT decision makers for the person who
lacks capacity. They are there to support and represent that person and to ensure that decision making for
people who lack capacity is done appropriately and in accordance with the Act. Paragraph 4.17 of the Welsh
Government’s Reference Guide for Consent to Examination or Treatment provides guidance on the meaning
of “serious medical treatment”.
6) BEST INTERESTS (MCA Code of Practice, Chapter 5)
The Mental Capacity Act requires that a health professional must consider all the relevant circumstances
relating to the decision in question, including, as far as possible:
 the person’s past and present wishes and feelings (in particular if they have been written down)
 any beliefs and values (e.g. religious, cultural or moral) that would be likely to influence the decision in
question and
 any other factors the person themselves would be likely to consider if they were making the decision or
acting for themselves
When determining what is in a person’s best interests a health professional must not make assumptions
about someone’s best interests merely on the basis of the person’s age or appearance, condition or any
aspect of their behaviour. If the decision concerns the provision or withdrawal of life-sustaining treatment the
health professional must not be motivated by a desire to bring about the person’s death.
If it is practical and appropriate to do so, the Mental Capacity Act requires a health professional to consult
other people for their views about the person’s best interests and to see if they have any information about
the person’s wishes and feelings, beliefs and values. In particular, a health professional should try to consult:
anyone previously named by the person as someone to be consulted on either the decision in question or on
similar issues; anyone engaged in caring for the person; close relatives, friends or others who take an
interest in the person’s welfare; any attorney appointed under a Lasting Power of Attorney or Enduring Power
of Attorney made by the person or any deputy appointed by the Court of Protection to make decisions for the
person.
7) THE COURT OF PROTECTION (MCA Code of Practice, Chapter 8)
Where treatment is complex and/or people close to the patient express doubts about the proposed treatment,
a second opinion should be sought, unless the urgency of the patient’s condition prevents this. The Court of
Protection deals with serious decisions affecting personal welfare matters, including addressing
disagreements about healthcare.
Cases involving the following should be referred to the Court for approval:
 decisions about the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from
patients in a permanent vegetative state (PVS) or minimally conscious state;
 cases involving organ, bone marrow or peripheral blood stem cell (PBSC) donation by an adult who lacks
capacity to consent;
 cases involving the proposed non-therapeutic sterilisation of a person who lacks capacity to consent to
this (e.g. for contraceptive purposes); and
 all other cases where there is a doubt or dispute about whether a particular treatment will be in a person’s
best interests (including cases involving ethical dilemmas in untested areas, where the medical
treatment has a fine balance of benefits and risks, where the choice between treatments is finely
balanced or there is likely to be a serious consequence to the patient).
The Court can also be asked to make a decision in cases where there are doubts about the patient’s capacity
and also about the validity or applicability of an advance decision to refuse treatment.
4 Serious medical treatment is defined as treatment which involves providing, withdrawing or withholding treatments where:
 if a single treatment is proposed there is a fine balance between the likely benefits and burdens to the patient and the risks involved;
 a decision between a choice of treatments is finely balanced; or
 what is proposed is likely to have serious consequences for the patient (either from the effects of treatment or its wider implications)
Whether procedures are considered ‘serious medical treatment’ in any given case will depend on the circumstances and consequences for the
patient.
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